Opinion
INDEX NO. 157034/2018 Third-Party Index No. 595236/2020
10-16-2020
BOARD OF MANAGERS OF THE PORTER HOUSE CONDOMINIUM, Plaintiff, v. DELSHAH 60 NINTH LLC, MICHAEL SHAH, ANTONIO DI ORONZO, Defendant. DELSHAH 60 NINTH LLC Plaintiff, v. ANTONIO DI ORANZO RA, BLUARCH LLC Defendant.
NYSCEF DOC. NO. 192 PRESENT: HON. ARLENE P. BLUTH Justice MOTION DATE 10/09/2020 MOTION SEQ. NO. 003 004 005
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 003) 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 84, 87, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 109, 116, 119, 120, 121, 122, 123, 124, 126, 127 were read on this motion to/for JUDGMENT - SUMMARY. The following e-filed documents, listed by NYSCEF document number (Motion 004) 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 175, 176, 177, 178, 179, 188 were read on this motion to/for AMEND CAPTION/PLEADINGS. The following e-filed documents, listed by NYSCEF document number (Motion 005) 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 174, 180, 181, 182, 183, 184, 189 were read on this motion to/for DISMISS.
Motion Sequence numbers 003, 004 and 005 are consolidated for disposition.
The motion MS003 by defendant Delshah 60 Ninth LLC ("Delshah") for partial summary judgment dismissing the third cause of action and cancelling the notice of pendency is denied. The motion (MS004) by defendant Delshah for leave to amend its third-party complaint is granted and the cross-motion and motion (MS005) by the third-party defendants to dismiss the third-party complaint is denied.
Background
Plaintiff owns a ten-story condo located at 66 Ninth Avenue. It claims that its predecessor entered into an agreement with the owner of the building next door (Delshah's predecessor) that imposed a perpetual easement of light and air and restricted elevations on the upper and lower roofs of Delshah's building. Plaintiff claims that defendants breached the easement agreement during renovations in 2016 and that some of its unit owners had their views obstructed. Delshah obtained a final certificate of occupancy for its building in May 2018.
Plaintiff argues that structures on the roof allegedly added by Delshah in 2016, including a stair bulkhead and an elevator bulkhead on the upper portion of the roof, exceed a height restriction contained in the easement agreement. Plaintiff also complains about an HVAC unit installed on the lower portion of the roof which allegedly also exceeded the elevation permitted under the agreement and is noisy; Delshah claims that a 2005 agreement (the "Smog Hog Agreement") expressly allows an HVAC unit on this portion of the roof. Also at issue are two sky lights added to the lower roof top.
MS003
Delshah moves for partial summary judgment dismissing the third cause of action, which seeks mandatory injunctive relief. Plaintiff wants a court order directing Delshah to remove the structures that violate the easement agreement. Delshah argues that HVAC unit is permitted under the height restrictions of the Smog Hog Agreement, that removal of the bulkheads would subject Delshah to building code violations and that the skylights constitute a de minimis encroachment.
Delshah explains that the Smog Hog Agreement arose because there were concerns (by plaintiff's predecessor) about the odors coming from a restaurant based in the building now owned by Delshah. It points out that paragraph 4 of this agreement specifically permitted Delshah's predecessor to maintain HVAC equipment on the roof and that new equipment could not increase the height of the equipment above an opaque fence.
With respect to the stair bulkhead, the elevator bulkhead, the HVAC and the skylights, Delshah assumes (for purposes of this motion only) that each exceeds the height limitations under the easement agreement. It argues that even if the measurements by plaintiff's expert are true, that does not compel the imposition of mandatory injunctive relief to take down these structures (as requested in the third cause of action). Delshah argues that plaintiff could be compensated through monetary damages and an order compelling the removal of these items would cause Delshah's building to violate applicable building codes.
In opposition, plaintiff claims that this motion is premature. It points out that this case is about Delshah's intentional encroachment on plaintiff's air and light easement. Plaintiff argues that before Delshah started these alterations, it warned Delshah's principal to not build improvements that would violate the easement agreement. Plaintiff alleges that Delshah misrepresented the legality of the alterations with DOB and then obtained a certificate of occupancy based on these erroneous filings. Plaintiff observes that there have been no depositions.
To be entitled to the remedy of summary judgment, the moving party "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853, 487 NYS2d 316 [1985]). The failure to make such a prima facie showing requires denial of the motion, regardless of the sufficiency of any opposing papers (id.). When deciding a summary judgment motion, the court views the alleged facts in the light most favorable to the non-moving party (Sosa v 46th St. Dev. LLC, 101 AD3d 490, 492, 955 NYS2d 589 [1st Dept 2012]).
Once a movant meets its initial burden, the burden shifts to the opponent, who must then produce sufficient evidence to establish the existence of a triable issue of fact (Zuckerman v City of New York, 49 NY2d 557, 560, 427 NYS2d 595 [1980]). The court's task in deciding a summary judgment motion is to determine whether there are bonafide issues of fact and not to delve into or resolve issues of credibility (Vega v Restani Constr. Corp., 18 NY3d 499, 505, 942 NYS2d 13 [2012]). If the court is unsure whether a triable issue of fact exists, or can reasonably conclude that fact is arguable, the motion must be denied (Tronlone v Lac d'Amiante Du Quebec, Ltee, 297 AD2d 528, 528-29, 747 NYS2d 79 [1st Dept 2002], affd 99 NY2d 647, 760 NYS2d 96 [2003]).
"Injunctive relief will be afforded only in those extraordinary situations where the plaintiff has no adequate remedy at law and such relief is necessary to avert irreparable injury" (Chicago Research and Trading v New York Futures Exch., Inc., 84 AD2d 413, 416, 446 NYS2d 280 [1st Dept 1982]).
The Court denies the motion. While Delshah is correct that a mandatory permanent injunction is drastic remedy, the fact is that more discovery is necessary. Plaintiff's theory is that Delshah was told about the easement agreement and it actively ignored it in order to make multimillion-dollar alterations to its own building. Plaintiff even suggests that Delshah misrepresented the building plans to various governmental entities.
That does not mean that if plaintiff proves its case, the Court will order Delshah to remove the alterations; it doesn't mean Delshah will be able to keep the structures, either. It does mean that at this stage of the litigation, the Court declines to eliminate either possibility. If plaintiff's allegations are true, then Delshah willfully performed construction work in direct violation of the easement agreement and residents at plaintiff's building no longer have the views that plaintiff contracted to preserve. It may be that money damages are the appropriate compensation (as Delshah asserts) but the Court cannot simply ignore Delshah's alleged flaunting of an agreement. The fact that the removal of Delshah's alterations may violate building codes is of no moment at this stage of the case. Delshah cannot purportedly make alterations that expressly violate an agreement it knew about and then claim it cannot be ordered to remove them.
The Court's denial of the instant motion also applies to the HVAC issue. Plaintiff claims that the Smog Hog Agreement related to "then-existing equipment" at the time this agreement was signed and Delshah later installed new equipment that violated the easement agreement. Plaintiff is correct that discovery is needed to explore whether the Smog Hog Agreement applied only to a distinct dispute with both parties' predecessors, or whether it also applied to replacement equipment installed years later by a different entity. It is clear, however, that the Smog Hog Agreement did not disaffirm or supersede the easement agreement.
The Court also declines to find, at this stage of the litigation, that the skylights are a de minimis violation. It is premature to make such a finding.
MS004
In this motion, Delshah seeks leave to file an amended third-party complaint, correct a name in the caption, include a cause of action for breach of contract implied in fact and to remove defendants who were previously dismissed from the case. Delshah claims that Di Oronzo and his firm (third-party defendant Bluarch) were hired to prepare plans on which Delshah's contractor relied. Delshah argues that if plaintiff prevails, it demonstrates that Di Oronzo failed to prepare drawings that properly calculated the elevation of the various structures and violated the easement agreement. Delshah emphasizes that it told its contractor to perform the construction work in accordance with Di Oronzo's plans and it had no independent role in the alterations. In other words, Delshah argues that it wholly relied on its architect and contractor.
Di Oronzo and Bluarch cross-move to inter alia dismiss the first and second causes of action, to dismiss the entire third-party complaint and oppose the motion for leave to amend. They point out that Delshah filed a third-party complaint that included an additional cause of action for breach of contract implied in fact (this was rejected by the clerk and now Delshah seeks leave to amend to add this cause of action).
The original causes of action against Di Oronzo and Bluarch are for common law indemnification and professional negligence. They claim that they cannot be held liable because common law indemnification cannot arise from intentional actions and private nuisance—the theory advanced by plaintiff—requires an intentional act. They point out that part of plaintiff's allegations is that the HVAC unit causes continuous noise and Di Oronzo has no control over this equipment.
Di Oronzo and Bluarch maintain that there cannot be common law indemnification arising from a breach of contract. They also claim that the professional negligence cause of action must be dismissed because it is merely a veiled attempt at another contribution claim, a cause of action which was previously dismissed. They also oppose the motion for leave to amend and claim that the breach of contract implied in fact is improper because it is really a professional negligence claim.
In reply, Delshah argues that breach of contract and architectural negligence claims can co-exist. It insists that the professional negligence claim is not a veiled contribution claim. Delshah maintains that it hired Di Oronzo and his firm to provide drawings for the roof-top structures that are now the subject of this lawsuit. With respect to the implied in fact breach of contract claim, Delshah argues that discovery is necessary to determine the scope, extent and terms of the "unwritten" agreement between Delshah and the third-party defendants. It requests the right to plead both professional negligence and breach of contract implied in fact in the alternative.
Delshah also argues that it may seek common law indemnification against its agent (third-party defendants) for damages incurred for negligence committed by that agent. It insists that this applies even in nuisance claims. Delshah concludes that the cases upon which third-party defendants rely merely stand for the proposition that indemnification cannot be sought for intentional torts, something that is not applicable here.
The Court grants Delshah's motion and denies the third-party defendants' cross-motion. Delshah has stated causes of action for common law indemnification, professional negligence and breach of contract implied in fact. It is permitted to plead breach of contract implied in fact in the alternative.
This case is only at the pleadings stage. It is premature for the Court to make factual findings; the Court can only consider the allegations and Delshah's contentions are that third-party defendants' faulty drawings led to the allegations plaintiff brought in the instant lawsuit.
Despite the parties' extensive briefing, the theory here is straightforward. Delshah contends that if plaintiff can recover against it, it should be able to recover against the person and firm who prepared the drawings upon which the structures were built. Its claim is that the third-party defendants should have designed the alterations in compliance with the easement and Smog Hog Agreements, and specifically the elevation limits. Discovery may reveal that these third-party defendants are not liable, but Delshah has stated causes of action against them.
"Common-law indemnification may be pursued by parties who have been held vicariously liable for the party that actually caused the negligence that injured the plaintiff" (Chatham Towers, Inc. v Castle Restoration & Const., Inc., 151 AD3d 419, 420, 56 NYS3d 74 [1st Dept 2017]). Here, Delshah alleges that third-party defendants were negligent in failing to comply with the height limits in the easement agreement; Delshah's claims are not based solely on a breach of contract theory and, therefore, it can pursue this cause of action.
The Court disagrees with third-party defendants that the professional negligence claim is a veiled attempt to reargue the contribution claim which was previously dismissed. Delshah alleges that it hired third-party defendants to perform a task using their architectural expertise and it relied upon the drawings Di Oronzo produced. If the drawings failed to comply with the specifications Delshah desired and caused Delshah to be liable (assuming plaintiff is successful), then third-party defendants might be liable under a professional negligence claim.
The Court also denies the motion by the third-party defendants to dismiss the third-party complaint (MS005) for the same reasons stated above. The Court questions why third-party defendants made a cross-motion and a separate motion for the same relief.
Accordingly, it is hereby
ORDERED that the motion (MS003) by defendant Delshah 60 Ninth LLC for partial summary judgment dismissing plaintiff's third cause of action is denied; and it is further
ORDERED that the motion (MS004) by Delshah for leave to amend its complaint is granted and Delshah shall upload the proposed amended pleading (NYSCEF Doc. No. 131) as a separately e-filed document within 7 days and third-party defendants shall answer or respond pursuant to the CPLR; and it is further
ORDERED that the caption of the case shall read as follows:
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 14
BOARD OF MANAGERS OF THE PORTER HOUSE CONDOMINIUM Plaintiff,
-against- DELSHAH 60 NINTH LLC, Defendant. DELSHAH 60 NINTH LLC, Third-party Plaintiff
-against- ANTONIO DI ORONZO, R.A., and BLUARCH LLC Third-party Defendant
Index No. 157034/2018
and it is further
ORDERED that, within 25 days, counsel for Delshah shall electronically serve a copy of this order with notice of entry upon the County Clerk (60 Centre Street, Room 141B) and the General Clerk's Office (60 Centre Street, Room 119), and those clerks are directed to mark the court's records to reflect the parties corrected and removed; and it is further
ORDERED that such service upon the County Clerk and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for3Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address (www.nycourts.gov/supctmanh)]; and it is further
ORDERED that the cross-motion and motion (MS005) by third-party defendants to dismiss is denied.
Remote Conference: Already Scheduled for February 2, 2021 at 9:30 a.m. 10/16/2020
DATE
/s/ _________
ARLENE P. BLUTH, J.S.C.